Red Mountain Consolidated Mining Co. v. Esler

Per Curiam. The defendant appeals from an order granting an injunction pendente Ute. Plaintiff is owner of the majority fractional interests in certain mining claims. Defendant is lessee from the owner of the minority fractional interests of said claims. Plaintiff asked a preliminary injunction, which was granted, restraining defendant from working the mines. From that order this appeal is taken. These temporary injunctions rest largely in the discretion of the district court. (Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Mont. 519, and cases cited.) We think that it appears from the record sufficiently to justify the discretion exercised by the district court that the defendant was alone working the mines; that, while he was not actively excluding the plaintiff from participation in the work, still the defendant was acting alone, and against the protests and objections of the plaintiff; that after the plaintiff, through its president, so objected and protested, the defendant promised to cease operations; that after this promise the president of the plaintiff, who seems to have been acting in its behalf, left the state temporarily, and that thereupon the defendant again commenced to prosecute his mining operations; that, while defendant alleges he is willing to account for the proceeds of the ore mined, still it appears that the plaintiff, through its president, was obliged to resort to the proceeding of stopping payment for the ores at the smelter, in this state; and that, after payment on said ores had been so stopped, the defendant clandestinely shipped the next quantity of ores to a smelter outside of the state. While expressing at this time no opinion as to what should be the final decision of the case after all the facts appear upon examination and cross-examination of witnesses, we are of opinion that the facts recited, and before the district court, were sufficient to sustain the discretion of that court in finding, as a preliminary question, that the defendant was assuming and exercising exclusive ownership over the property jointly owned by the parties. (Code of Civil Pro [177] cedure, § 592; Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Mont. 519.) The order of the district court is affirmed. Affirmed.